Chandigarh

StateCommission

A/279/2017

Allen Career Institute - Complainant(s)

Versus

Nikhil Saini (Minor) - Opp.Party(s)

Tarunjit Singh Grewal Adv.

24 Apr 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

Appeal No.	:	279 of 2017
Date of Institution	:	20.11.2017
Date of Decision	:	24.04.2018

 

1. Allen Career Institute, through its Centre Head, Plot No.808, Industrial Area, Phase-2, Chandigarh.
2. Allen Career Institute, Corporate Office at ‘Sankalp’, CP-6, Indra Vihar, Kota (Rajasthan) 324005.  

.…Appellants/Opposite Parties.

Versus

Nikhil Saini (Minor) through his Guardian/Father Sh. Yash Pal Saini, resident of GHS-92, F-11, Sector-20, Panchkula.

….Respondent/Complainant.

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:   JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT.PADMA PANDEY, MEMBER.

Argued by:

Sh. Tarunjit Singh Grewal, Advocate for the appellants.

Ms. Shiti Jain, Advocate for the respondent.

 

PER DEV RAJ, MEMBER

              This appeal has been filed by the Opposite Parties against order dated 21.09.2017, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short ‘the Forum’), vide which, consumer complaint bearing No.49 of 2017, filed by the complainant, was allowed against the Opposite Parties, in the following manner:-

“10]      Keeping into consideration the above facts, the act of the Opposite Parties for forfeiture of whole of the tuition fee of Rs.1,20,000/- of the complainant amounts to unfair trade practice on their part, which cannot be acquiesced.  The complaint, as such, is allowed with directions to the Opposite Parties to refund the balance fee amount of Rs.80,000/- to the complainant, along with compensation of Rs.10,000/- and litigation cost of Rs.5000/-.

        This order shall be complied with by the OPs within a period of 30 days from the date of receipt of copy of this order. 

         If the order is not complied within the above stipulated period, the Opposite Parties shall also have to bear additional compensatory cost of Rs.10,000/- payable to the complainant.”

2.         The facts in brief are that the complainant got admission in Coaching Centre of Opposite Party No.1 for JEE (Main + Advanced) Nurture Phase-1 Course and paid a lump sum fee of Rs.1,20,000/- on 1.4.2016 to the Opposite Parties for One Year Course (Annexure C-1).  It was further stated that the complainant attended the coaching of the Opposite Parties from 6.4.2016 to 2^nd week of July, 2016 (Annexures C-2 & C-3).  It was further stated that in the meantime, the complainant became successful in getting admission in Indo Swiss Training Centre (ISTC), Sector 30-C, Chandigarh, where he deposited the fee on 28.7.2016.  It was further stated that the complainant intimated about his admission with ISTC to the Opposite Parties and sought refund of his balance fee of Rs.80,000/- as he had attended the coaching with the Opposite Parties only from 6.4.2016 to 2^nd week of July, 2016 and thereafter, no coaching was given/taken by him. It was further stated that when the complainant visited the Opposite Parties for getting refund, the same was flatly refused. It was further stated that the complainant served legal notice upon the Opposite Parties but to no avail. It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed,        left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed seeking various reliefs.

3.           The Opposite Parties, in their written statement, while admitting the factual matrix of the case, stated that the complainant was not a consumer as the matter relating to admission, fees etc. cannot be entertained by the Consumer Forum under the Act, 1986 and reliance was placed on various judgments.  On merits, it was stated that the complainant was not entitled for refund of fees as he had utilized the services of the Opposite Parties for professional studies for more than 3 months and also got complete study material etc.  It was further stated that the Opposite Parties had paid the service tax to the Government on full fees of Rs.1,20,000/- received from the complainant at the time of admission, which could not be taken back by the Opposite Parties. It was further stated that the Opposite Parties cannot be made liable to suffer for the fault of the complainant as after studying for more than 3 months approx. and utilizing the services of the Opposite Parties, the complainant asked for refund of fees on baseless ground.  It was further stated that the complainant and his father, both signed the declaration on challan-cum-receipt paper (Annexure C-1) while getting admission with the Opposite Parties and thereby agreed to abide by the refund rules of the Institute. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

4.         The complainant filed rejoinder, wherein he reiterated all the averments, contained in the complaint and controverted those, contained in written version of the Opposite Parties.

5.         The parties led evidence, in support of their case.

6.         After hearing the Counsel for the parties and perusing the record, the Forum allowed the complaint as stated above.

7.          Feeling aggrieved, the Opposite Parties have filed the instant appeal.

8.         We have heard the Counsel for the parties and have gone through the evidence and record of the case, carefully.

9.         Counsel for the appellants/Opposite Parties stated that the Forum committed grave error by misreading the evidence on record and by not taking into consideration important aspects of the case. It was stated that the respondent/complainant failed to show any kind of deficiency on the part of the appellants/Opposite Parties and, therefore, the respondent/complainant is not entitled for refund of fees. According to the refund policy, the first refund could be provided within one month from the date of admission i.e. 20.04.2016 and thereafter, the second refund date was 05.05.2016. It was further stated that the respondent/complainant was duly informed that he was not entitled for refund of the fee because the time for getting the refund had already lapsed. The Counsel argued that the complainant, and his father had also signed declaration while getting admission to the effect that they agreed to follow all the instructions as applicable from time to time and also agreed to abide by the refund rules of the Institute. It was further stated that the complainant does not fall under the definition of a ‘consumer’ under the 1986 Act. The Counsel further argued that the District Forum erred in not considering the fact that complete reading material was supplied to the complainant and also the fact that service tax in the sum of Rs.15,197/- paid by the appellants/Opposite Parties could not be taken back. Lastly, prayer to set aside the impugned order was made. The Counsel for the respondent/complainant argued that the order of the District Forum, being just and correct, does not warrant any interference.

10.       It is evident from record that the respondent/complainant got admission in coaching centre of the appellants/Opposite Parties by paying a lumpsum amount of Rs.1,20,000/- on 01.04.2016. The duration of the course was one year. At the time of admission, the respondent/complainant (who was minor at that time) alongwith his father signed the following declaration (Annexure C-1):-

 

“I hereby declare that I have read all the instruction of “INFORMATION LETTER/ BULLETIN/available on our website www.allen.ac.in and I do agree to follow the same and as applicable time to time. I also agree to abide by the Refund Rules of the Institute. All dispute are subject to Kota (Rajasthan) Jurisdiction only.”

 

11.       Perusal of Annexure C-1 reveals that lump-sum fee of Rs.1,20,000/- included a sum of Rs.15,197/- on account of service tax. It is the case of the appellants/Opposite parties that the service tax was paid to the Government and the same is not refundable. Thus, effectively a sum of Rs.1,04,803/- remained with the appellants/Opposite Parties. The respondent/ complainant attended the coaching classes from April 2016 to July 2016 and he vide his letter dated 28.07.2016 (Annexure C-7), stating that his financial condition was not very good, requested for refund of fee as much as possible so that he could continue his course in Government Institute i.e. Indo Swiss Training Centre (ISTC),CSIO, Sector 30-C, Chandigarh.

12.       The Forum in Paras 6 and 7 of its ordered observed as under:-

“6]       The complainant admittedly attended the coaching for JEE Course in Allen Career Institute/OPs with effect from 6.4.2016 to 2^nd week of July, 2016 i.e. about for 3 months only.  The complainant has, however, paid an amount of Rs.1,20,000/- as lump sum fee for One Year.  The stand taken by the OPs against the refund of fee to the complainant on the basis of contractual liability as envisaged in the Information Bulletin (Ann.C-6) is not legally viable being the same in violation of provisions of Indian Contract Act, 1872.  Section 11 of the Indian Contract Act, 1872 is reproduced below:-

11.    Who are competent to contract.—Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.

7]       As per provisions stipulated in Section 11 of the Indian Contract Act, 1872, only a major i.e. a person who has attained the age of 18 years is competent to contract.  The complainant herein is a minor and as such, the terms & conditions whatsoever in the Information Bulletin, issued by the OPs containing conditions regarding refund of fee etc., are not binding on the complainant. The complainant applied and attended the coaching classes.  The father of the complainant being natural guardian though has signed the Receipt, but that is not sufficient enough to defeat the claim of the complainant for refund of balance fee.” 

 

13.       Since the declaration was also signed by the father of the respondent/complainant, the finding of the Forum that the appellant/complainant was not competent to contract and the terms and conditions regarding refund were not binding, in our opinion, is thus erroneous.

14.       The core question, which now falls for consideration, is, whether the finding of the Forum granting refund of Rs.80,000/- is correct or not. It may be stated here that the complainant in his complaint sought refund of Rs.80,000/- out of Rs.1,20,000/- after deduction of fee of four months. As stated above in Para 11, out of Rs.1,20,000/-, a sum of Rs.15,197/- was on account of service tax. Out of the remaining amount of Rs.1,04,803/- (rounded off to Rs.1,05,000/-), the refundable amount, as per finding of the Forum, in Para 8 of the impugned order, would have been Rs.70,000/- only. This amount is proportionate to the period of course attended to by the respondent/complainant i.e. 1/3^rd duration. It is not a case that the respondent/complainant left the Institute on account of any dissatisfaction/deficiency in services of the Coaching Institute but it was on account of his own choice/decision because of his getting admission in some other course. Therefore, the respondent/ complainant is not entitled to refund, if any, on account of any deficiency in coaching on the part of the appellants/Opposite Parties. We, however, feel that it would be very unfair, if the appellants/Opposite Parties are allowed to usurp the entire fee. Looking at all aspects of the matter i.e. attending of classes by the complainant only for 1/3^rd duration, the fact that the appellants/Opposite Parties provided complete reading material to the complainant and leaving the course midway by the complainant of his own, to put      quietus to the matter, refund of Rs.56,000/-, after imposing a cut of 20% on Rs.70,000/-, shall serve the ends of justice.

15.       In the facts and circumstances of the case, compensation in the sum of Rs.10,000/- awarded by the Forum, in our opinion, is not justified. The litigation cost of Rs.5,000/- is, however, kept intact.

16.       The order of the District Forum needs to be modified to the extent indicated above.

17.       No other point was raised by the Counsel for the parties.

18.       For the reasons recorded above, this appeal is partly accepted with no orders as to cost. The impugned order passed by the Forum is modified as under:-

1.    The appellants/Opposite Parties are directed to refund an amount of Rs.56,000/- to the respondent/ complainant;
2.    The appellants/Opposite Parties are further directed to pay an amount of Rs.5,000/- as litigation cost to the respondent/complainant;
3.    This order be complied with by the appellants/Opposite Parties within a period of 30 days from the date of receipt of its certified copy, failing which, the appellants/Opposite Parties shall pay the aforesaid amount of Rs.56,000/- alongwith interest @9% p.a. (simple) from the date of filing the complaint, till actual realization besides litigation cost of Rs.5,000/-.

19.       Certified copies of the order be sent to the parties free of charge.

20.       File be consigned to the Record Room after completion.

Pronounced

24.04.2018.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(DEV RAJ)

MEMBER

 

 

(PADMA PANDEY)

MEMBER

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